R v Ames
[2011] SASC 203
•29 November 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v AMES
[2011] SASC 203
Judgment of The Honourable Justice Peek
29 November 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - PROOF AND EVIDENCE - MOTIVE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE
Criminal trial by judge alone - accused charged with murder - accused pleaded not guilty - victim the accused's uncle - circumstantial evidence.
Held: - accused guilty of murder - the evidence taken as a whole is inconsistent with any rational or reasonable hypothesis other than the guilt of the accused.
Azzopardi v The Queen (2001) 205 CLR 50; R v Weetra (2010) 108 SASR 232, considered.
R v AMES
[2011] SASC 203Criminal: Trial by Judge Alone
PEEK J.
Introduction
Daniel Troy Ames is charged with the crime of murder. The particulars of the charge against him are that between the 23rd day of November and the 26th day of November at Cavan he murdered his uncle, Allan William Ames. Upon his arraignment the accused pleaded not guilty. The trial proceeded before me as a Judge sitting alone and I reserved judgment following the completion of the final address by Mr Boucaut, Senior Counsel for the accused, on Friday 18 November 2011. My verdict and reasons follow.
Uncontentious facts surrounding the death of the deceased
There are a number of uncontentious facts and items of evidence concerning the circumstances surrounding the death of the deceased which I will summarise. Before doing so, I should mention that the various times to which I will refer have been derived from various sources in the evidence, some of which have had to be corrected to South Australian standard time.[1] I also note that where a witness has given oral evidence of performing an action at an approximate time, and that action is clearly depicted on CCTV footage, I have referred to the most accurate and reliable time source.
[1] The uncorrected times displayed on some exhibits may therefore appear to differ from the corrected times referred to herein but such differences have been taken into account.
I find the following facts to be proven.
The family relationship between the accused and the deceased
Mrs Vera Ames had four sons: Allan Ames (the deceased), Keith, Deane and Douglas. The accused, Daniel Ames, is the son of Douglas Ames and the deceased was the uncle of the accused.
The finding of the body of the deceased
The body of the deceased was found by Mr Paul Martino at about 8.48am on 25 November 2009 at 14 Thomas Street, Cavan which were industrial premises owned by the deceased.
The business premises of “Cross Cranes” which are situated at 13 Thomas Street, on the opposite side of the street to No 14 Thomas Street and a little to the west, had a CCTV system (“Cross Cranes CCTV”). At 6.44am on 25November, Mr Ridley, an employee of the business is seen on CCTV leaving the Cross Cranes premises on his way to a job at Mannum. He stated in evidence that, a few minutes before leaving for that destination at that time, he had suggested to Mr Paul Martino, another employee of Cross Cranes, that he might go and check on the deceased. Ridley stated that he had made that suggestion because an interior light (as distinct from an external sensor light to be referred to below) had been on continuously at No 14 from since the previous evening and he had not seen any sign of the deceased moving about.
At about 6.50am, Mr Martino is seen on CCTV going to the front gate at No 14. He found it to be unlocked: the padlock had been turned to give it the appearance of being locked but the hasp was not in fact engaged. He called out to the deceased and received no reply. At that stage he proceeded no further. However, he continued to consider the matter and at about 8.47am, he is seen on CCTV again going to No 14. Mr Martino’s evidence was that he entered what has been referred to as the large shed at the rear and there found the body of the deceased.
The body of the deceased was found lying on its back in a fairly straight position on the floor of the large rear shed. There was obvious extensive bleeding from the head. Mr Martino called triple zero for an ambulance. The ambulance arrived at about 8.56am and life was certified as extinct shortly after at 9.07am.
The position and immediate surroundings of the body
Near to the extended right arm was a large hacksaw. Near to the feet of the body was a table on which was located a small set of battery operated scales, a cutlery knife and a small hacksaw. The blades of both hacksaws were tested and found to have methyl-amphetamine residue and a minor component of MDMA adhering to them. The cutlery knife was also tested and found to have methyl-amphetamine residue adhering to it. Methyl-amphetamine residue was also found on the table top itself.
In the top pocket of the shirt of the deceased was found the amount of $600.00, in $50 notes. Three further amounts of cash in $50 and $100 notes were found in other locations at 14 Thomas Street, amounting to a further total of $8,000.
On the floor a little distance from the body was a fired Remington .380 Auto pistol cartridge case. No firearm was found in the immediate proximity of the body.
A little further from the body was found an item of jewellery (depicted in photograph 41 of exhibit P1) which the deceased’s widow, Mrs Wilma Ames, identified as an article she had seen the deceased wearing from time to time over about a period of twelve months leading up to the date of his death.
Found within the large rear shed was a large quantity of unused heat seal bags, two tubs each of which contained a quantity of methyl-amphetamine, and a number of cannabis plants and clones being hydroponically grown.
The cause of death
Death was caused by a single gunshot wound to the head. The projectile entered the front of the head at an angle of 35 degrees from the horizontal at a point 10cm above and just to the right of the bridge of the nose in the right frontal scalp and came to rest beneath the skin at the rear of the neck from where it was recovered on post mortem. Death would have followed almost immediately after impact.
The post mortem examination
Dr Gilbert both attended the scene at 14 Thomas Street, observing the body in situ, and also performed the later formal post mortem.
There was no burning of the skin, soot deposit or stippling on, or in the vicinity of, the entry wound and microscopic examination of the skin showed no propellant residue. The above observations convincingly rule out the possibility that the muzzle of the firearm was in contact with the body of the deceased at the time of discharge. Usually, such findings would exclude a “close range shot”, being of, say, less than a metre. However in the present case, there are a number of imponderables in relation to the firearm used which might somewhat affect that estimate. As I understand it, the poorer the tolerances of the firearm, the more propellant gases may be emitted on firing and the absence of the findings referred to above would tend to indicate a somewhat greater, rather than a lesser, minimum range than might usually be indicated.
There was bruising to the right eye and bleeding from the nose to be observed on the body but Dr Gilbert was of the opinion that both were likely to have been associated with internal fracture caused by the gunshot. Elsewhere on the body were only minor bruises and abrasions. These were not sufficiently serious or pronounced to establish positively any particular assault upon the deceased other than the gunshot wound. Some degree of assault prior to death is, of course, possible. The presence of the item of the deceased’s jewellery on the floor referred to above may possibly have been indicative of some form of physical contact or struggle with the deceased shortly prior to his death.
There was some dust or dirt on the knees of the deceased which could indicate that he was kneeling at the time of the shot and the prosecution did advance that theory. However, although the theory may be consistent with the angle of travel of the projectile through the head (if certain assumptions are made as to the attitude of the head at the relevant time), the theory remains speculative in that the deceased could have been kneeling during the day of 24 November doing any number of things quite disassociated with the circumstances leading up to his death.
The ballistics evidence
The projectile which caused the death was fired from a .380 Auto pistol cartridge and was consistent with having been fired from the Remington .380 Auto cartridge case discovered near the body.
The .380 Auto cartridge is a rimless pistol cartridge compatible with semi- automatic pistols rather than revolvers. There was both an extractor mark and an ejector mark which would indicate that the cartridge case had been fired and ejected from a semi-automatic pistol. However, the projectile had no rifling marks, indicating that it had been fired from a firearm with a smooth bore. This could in turn indicate a barrel that had had its rifling removed or a barrel that was always smooth bore, possibly a home made conversion involving a replica or starting pistol.
The cartridge case had a slight bulge which could be due to various causes including a very poorly made pistol with an oversize breech at the point of the bulge or perhaps a home made or converted pistol made out of poor quality metal, in each case the breech allowing the case to expand slightly upon firing, resulting in the bulge.
Throughout both the premises at 14 Thomas Street and at the deceased’s home at Priscilla Road a number of firearms were found but it is certain that none were capable of firing the cartridge or projectile that was involved here. Also found in many locations at both premises were various quantities of fired and unfired ammunition of various calibres exceeding 10,000 items in total. The only item of real interest was one only unfired .380 Auto pistol cartridge. This was found in a container with other assorted ammunition which was in turn with a large amount of other ammunition at the premises at 14 Thomas Street during the police search. The fact that it is the same calibre as the murder weapon is interesting but may well be only a coincidence. Although it would clearly have been capable of being fired in the murder weapon, it is to be noted that it was a different brand of ammunition, being Fabrique Nationale (Browning) rather than Remington.
The layout of the premises at 14 Thomas Street
The layout of the premises at 14 Thomas Street was considered in very close detail at trial by way of oral evidence and was the subject of dozens of photographs received as portions of exhibits.
The matter is somewhat complicated by the fact that the premises were sold after the death of the deceased and are now significantly different in their disposition. The premises are depicted in exhibit P2 which is a combination of an aerial photograph and a plan of the office area which had been demolished by the time of the taking of the photograph. A view of the premises was held, which obviously has not been treated as part of the evidence.
One assumes that Thomas Street runs approximately west to east from its junction with Port Wakefield Road, No 14 faces north on Thomas Street. A description of the premises as they were at the relevant time is as follows.
There were three buildings on the premises at the relevant time. The first and most northerly building, in the north east corner of the block, was the detached office building.
Proceeding south, the second building was an industrial shed (the smaller shed) which extended from a point about 1-2 metres from the eastern boundary for about ¾ of the block across to the west. On the eastern boundary, there was a gap between the boundary and the eastern side of the shed, down which one might have walked but for the fact that it was filled with all sorts of items and debris such that passage would have been impossible.
However, on the western boundary, there was a large gap between the western boundary and the western side of the smaller shed down which one might comfortably walk.
The large shed
Proceeding further south, the smaller shed abutted the third building, a much larger solid besser brick shed (“the large shed”) which extended east to west across the whole of the block. This was the shed in which the body was found. There were no doors, windows or other points of access on the western, southern or eastern sides of the large shed. To the south of the large shed, at the western end, there was the main access to the large shed from the path from Thomas Street via a large sliding gate.
The blue door
At the northern end of the large shed, at the eastern corner, there was additional access to the large shed by virtue of a small blue wooden door (“the blue door”). The blue door was presumably the original access from Thomas Street between the eastern boundary and the eastern side of the smaller shed but part of the original path was filled with debris and was impassable. However, access to the larger shed via the blue door could be gained from the neighbouring property to the east, 12 Thomas Street. To walk through 12 Thomas Street and then cross into 14 Thomas Street at the position of the blue door would have been relatively simple but one would have to have known of the existence of the blue door, which was not visible from Thomas Street.
The blue door itself was fitted with a simple lock which had a facility to turn the centre piece of the internal handle so as to lock and unlock. If one were inside, one could open the door, turn the lock, exit and close the door, thus locking the door. The lock was fitted with a standing bar to prevent it being forced or slipped by means of something like a credit card.
The lock on the blue door was found in the locked position on police inspection on 25 November 2009 and there was no sign that it had been forced. The soil adjacent to the outside of the blue door appeared undisturbed. I consider that all of the circumstances made access by this route highly unlikely but I cannot say impossible.
The gap in the iron above the blue door
High above the blue door was a gap in the iron sufficient to allow entry by someone who could get to that position. This would have required a long ladder outside and presumably a means of lowering oneself to the shed floor. The police inspection on 25 November 2009 found no evidence that there had been ingress or egress by this route. No ladder was found at this location but there were ladders at other places on the property. Again, all of the circumstances made access by this route by night unlikely, but again I cannot say impossible.
The deceased’s general disposition and familiarity with firearms
The deceased’s Holden utility was parked outside of 14 Thomas Street. Inside was found, amongst other things, a black beanie, a large machete and a combat style knife. The latter two returned negative presumptive results for blood. The machete and combat style knife found in his utility may suggest that he was expecting trouble.
The deceased was experienced with firearms having been a member of at least one gun club and being in possession of numerous firearms. At 14 Thomas Street, he was very well armed with rifles, shotguns and a revolver all being found there together with plenty of ammunition for each of them.
The accused in his interview stressed that the deceased always locked the front gate and generally agreed with the proposition that the deceased was security conscious. The findings on post mortem suggest that the deceased had no debilitating physical condition restricting his ability to defend himself.
I find that in all of the circumstances, including, but not limited to, the accused’s own statements, the deceased was security conscious and was in a good position to defend himself and would have taken steps to do so if given any reason to suspect danger to himself.
Suicide or an accident by the deceased is eliminated as a possibility
There is no suggestion made by the accused, or arising on the evidence, that the deceased committed suicide or shot himself by accident.
As to suicide, none of the witnesses who gave evidence before me (including the deceased’s wife and relatives, friends and acquaintances of the deceased) ever suggested that he was in any way depressed or that he had ever given any indication of suicidal behaviour or ideation. There was no suicide note. The deceased had not tidied himself or apparently made any preparations for death. The physical items surrounding his body suggested that he was busy at the time of his death.
Of high importance, no firearm capable of firing the projectile recovered from the body was located near the body, or indeed anywhere on the premises. Death would have been virtually instantaneous and it would have been impossible for the deceased to have both fired the shot and then disposed of the firearm. The circumstances under which the body was found were such that there was no crowd of passersby, one of whom might have stolen the firearm: a theft of the firearm following a suicide in all of the present circumstances is highly unlikely. As stated above, there was no burning of the skin, soot deposit or stippling on, or in vicinity of, the entry wound, indicating that the barrel of the firearm was not in contact with the skin at the time of discharge. The position of the firearm relative to the body (as indicated by the angle of passage of the projectile from the entry wound to the point of rest from which it was recovered) was highly atypical for a suicide (but not such as to render it entirely impossible).
As to the deceased shooting himself by accident, the absence of the relevant firearm near the body is again highly important. Further, the deceased was well familiar with firearms. Finally, the required position of the firearm relative to the body (both in relation to distance and particularly the required angle of the barrel having regard to the factors mentioned above) would make anything other than a deliberate discharge virtually impossible, if not impossible, in the circumstances.
The cumulative force of all of the circumstances is such that I find beyond reasonable doubt that the deceased did not commit suicide or shoot himself by accident.
Directions as to the law
The crime of murder is committed when a person deliberately and unlawfully causes the death of another person while at the same time intending to cause death or grievous bodily harm. The prosecution must prove beyond reasonable doubt that:
·the act or acts of the accused caused the death of the deceased;
·the act or acts of the accused which caused the death were conscious and voluntary, that is to say that they were the result of the exercise of the accused’s will and were not the result of an accident;
·the act or acts of the accused which caused the death were carried out with the intention of either killing the deceased or at the very least causing him grievous bodily harm by which I mean really serious bodily harm. The intention necessary for the crime of murder must exist at the time when the act or acts which caused the death were carried out; and
·the killing was done without any lawful justification or excuse such as lawful self-defence.
In considering the issues which arise for determination, I bear in mind at all times that the accused is presumed to be innocent and does not have to prove that he is innocent. The accused is not to be convicted unless and until I am satisfied beyond reasonable doubt of his guilt of this charge. In a case relying upon circumstantial evidence such as the present, I direct myself that the evidence must exclude beyond reasonable doubt any rational hypothesis of the accused being innocent of this charge of murder.
Whenever I use terms such as “accept”, “satisfied” or “proved” in this judgment I mean accept, satisfied or proved beyond reasonable doubt.
The course of the trial
On 26 October 2011, in the course of discussion as to mode of trial, I was informed by Mr Boucaut that there was discussion proceeding with the prosecution as to a number of matters as to the running of the trial generally.
On Monday 7 November 2011 the trial commenced and the accused pleaded not guilty. Mr Preston opened the case and indicated that he would prove that the accused was at 14 Thomas Street from just after 9.50pm until just after 12.10am by a process of analysis of the CCTV footage from Cross Cranes. At the conclusion of his opening address, the first prosecution witness was called and evidence (and a view) continued for that day and the following Tuesday. At the commencement of proceedings on Wednesday 9 November 2011, Mr Preston requested that we continue with evidence but adjourn early that afternoon to allow counsel to settle certain agreed facts. We sat for the whole of that day but on the following day, Thursday 10 November 2011, we adjourned at 12.21pm to the following morning for the same purpose. On Friday 11 November 2011, we resumed but the agreed facts were not finalised and we further adjourned until 2.15pm that afternoon. At that time the trial resumed and the prosecution tendered, with the consent of the accused, a statement of agreed facts or, more correctly, admissions made by the accused pursuant to s 34 Evidence Act 1929 as exhibit P33.
This statement of agreed facts constituted a very belated admission as to the true duration of the accused’s visit to 14 Thomas Street on 24 and 25 November 2009. It was clearly only made in the face of an ability of the prosecution to prove that matter by other methods as referred to in the formal opening of the prosecution case.
The prosecution case proceeded until 17 November 2011 when its case was closed. Mr Boucaut made no submission of no case to answer. There was clearly a case to answer and I formally so found. The accused elected not to give or call oral evidence, although I note that Mr Boucaut had during the prosecution case tendered some photographs which I have considered.
I do not draw any inference from the decision of the accused not to give evidence. I direct myself in accordance with the judgment of Gaudron, Gummow, Kirby and Hayne J in Azzopardi v The Queen that:[2]
… the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.
[2] (2001) 205 CLR 50, [51].
Overview of the prosecution case
The prosecution case was based on a correct premise as to cases involving circumstantial evidence: where the hypothesis of innocence of the accused requires the concurrent existence of a number of different matters, the unlikelihood of all of such matters having occurred may be seen to be so great that the hypothesis of innocence becomes so improbable as to be dismissed as fanciful or, in other traditional words, as not a rational hypothesis.
The prosecution case is that a conclusion that the accused murdered the deceased is inevitable on the basis of all of the evidence and inferences including the following:
·The accused was the last known person to have seen or spoken to the deceased while he was alive.
·The accused was with the deceased from 9.52pm until 12.14am, a period of about 2¼ hours.
·The best estimate of Dr Gilbert of the time of death is 12 midnight (although a later time is possible).
·The widow of the deceased commenced to telephone the deceased from 1am to 3am. None of the calls were answered, with the inference suggested by the prosecution being that the deceased was dead by 1am.
·When the accused arrived at 9.52pm and left at 12.14am, the sensor lights activated on both occasions due to movements on the premises but they did not come on again after the accused had left. This tends to indicate, first, that the deceased was not moving around the premises after the accused had left and, second, no other person attended at the premises until the body was later discovered.
·A theory of a killing in the course of a robbery by a stranger with a firearm is fanciful in the light of the fact that $600 was found in the deceased’s wallet which was on his person and would have been located by the most superficial search. Other cash to the total of $8,000 was found in various parts of the premises and there was no indication on the deceased’s body of the kind of assault or torture that one might expect to have been applied by a criminal prepared to kill to persuade the deceased to produce money if he were suspected to have it. A number of firearms were found at the premises and some were quite easily seen in the in situ photographs but were not taken.
·There was an inference of an association between the deceased and the accused to be drawn from the facts in that the deceased was in possession of methyl-amphetamine (mixed with a very small amount of MDMA) at the time of his death and a substantial amount of methyl-amphetamine (mixed with a very small amount of MDMA) was found hidden at the home of the accused ten days after the death.
·CCTV footage recorded at the home of the accused during 24 and 25 November 2009 shows that between 9.19pm and 9.35pm the accused changed from the clothes that he was wearing (“outfit 1”) to different clothes (“outfit 2”) prior to his departure at about 9.40pm for 14 Thomas Street where he arrived at 9.52pm. After leaving 14 Thomas Street at 12.14am and returning home, he again changed into still different clothes (“outfit 3”) prior to again departing the premises at 12.56am and later returning again at 2.56am.
·When interviewed by police on 5 December 2009, the accused clearly lied in stating that he had only been in the company of the deceased for 20 to 25 minutes on 24 November 2009. The prosecution submit that his lies on this topic evinced a consciousness of guilt.
·The accused also stated that he returned home by the same route that he came, namely via Port Wakefield Road. This is shown to be false by the records of a Safe-T-Cam situated on Port Wakefield Road which recorded the south bound travel of the accused’s vehicle but did not record the claimed north bound travel. The time taken by the accused to return from 14 Thomas Street to his home (about twelve minutes) was significantly greater than the usual time for travel between those two points (about five minutes) and is consistent with an immediate disposal of the firearm by the accused.
·When requested by police on 5 December 2009 to produce the clothes he was wearing at the time of his visit to 14 Thomas Street, the accused stated that the top he had been wearing was a black long sleeve tee shirt (which corresponded to “outfit 2” referred to above) but claimed to be unable to find it.
·On 5 December 2009, samples were taken from a number of locations in the accused’s Navara vehicle and were tested for gunshot residue. It was said that two of the samples were found to be consistent with gunshot residue. (The admissibility of this evidence was challenged by Mr Boucaut and I will consider this matter below).
Approach to the case generally
It is necessary to examine carefully all of the evidence in order to determine what evidence is to be accepted and then to consider what inferences can be safely drawn from that evidence. Finally, the totality of the accepted evidence and the inferences that may safely be drawn from it must be considered in the context of the question of whether the charge that the accused is guilty of the crime of murder is proven beyond reasonable doubt.
The case against the accused is entirely circumstantial. As stated above, the accused is not to be found guilty unless there is no reasonable explanation of all the accepted evidence, other than that the accused is guilty of the crime of murder. To put that another way, if there remains any reasonable hypothesis of his innocence, the accused must be acquitted.
Motive or apparent lack thereof
Motive is not an element of the crime of murder and the prosecution do not need to establish one. In the present case, a motive for the accused to murder the deceased is not readily apparent and one must not adopt a process of, or akin to, speculating upon what motive there might have been and then using such possibility as a factor to be taken into account in assessing whether guilt has been established.
In the present case, there is evidence that several years before the murder of the deceased, a family squabble had developed between the deceased’s brothers in relation to a proposal by the deceased to put their mother in a retirement home which somehow involved the deceased placing a caveat on the mother’s home. This was later removed and the mother moved in with Deane Ames where she still resides.
There is no evidence before me that the accused somehow bore the deceased ill will arising out of this incident and no other specific matter of enmity is demonstrated on the evidence. The evidence before me is incapable of establishing a definite motive for the accused to kill the deceased.
However, one must remember that absence of evidence of motive does not equate to positive evidence that there was no motive. In the present case, the accused and the deceased were not complete strangers such that one could reasonably postulate that there could be no possible motive for the accused to kill the deceased. The accused was at the deceased’s premises for a period of about 2¼ hours on the night of his death. There was significant evidence that the deceased had been trading in methyl-amphetamine and methyl-amphetamine (mixed with a very small amount of MDMA) was found at 14 Thomas Street and near his body. There was also found on the premises of the accused at Malta Drive, ten days after the death, a substantial quantity of methyl-amphetamine (also mixed with a very small amount of MDMA). In such circumstances, it cannot be said that the absence of a known motive is a positive and significant bar to the prosecution case that the accused killed the deceased. In such circumstances, the Crown rightly submits that one simply does not know the precise relationship between the accused and the deceased. One simply cannot know whether or not the accused did have a motive to kill the deceased.
The accused’s presence at 14 Thomas Street and the likely time of death
There are a number of bodies of evidence that bear upon the accused’s presence at 14 Thomas Street and the likely time of the deceased’s death.
The deceased was alive shortly before the accused arrived at 14 Thomas Street
I find that the deceased was still alive shortly before the arrival of the accused at 14 Thomas Street on the basis of the following evidence which I accept unless the contrary is indicated.
Cross Cranes CCTV shows the deceased at about 7.30pm in conversation with the witness Mr Birch whose home was in Goldsborough Street, about 80-100 metres from 14 Thomas Street. After talking for a while, the two of them then travelled to Mr Birch’s home where a quantity of lawn turf was loaded into the back of the deceased’s utility.
At 8pm the deceased is shown on the Cross Cranes CCTV to park his Holden utility outside 14 Thomas Street and walk inside. At 8.02pm, a text was sent from the deceased’s mobile phone to the accused stating “Back at Cavan 4 while” (to which the accused replied “OK” at 9.08pm). At about 8.45pm the deceased had a telephone conversation with a friend (who gave evidence), arranging to have lunch the following day.
Mr Birch gave evidence, which I generally accept, that in the vicinity of 9pm to 10pm the deceased briefly attended at his home and sold him 4 grams of methyl-amphetamine, a matter which they had discussed in the earlier conversation outside 14 Thomas Street referred to above. Mr Birch’s memory was that the deceased came in his vehicle. However, he is likely wrong about that because at 9pm the deceased is seen on the Cross Cranes CCTV to walk east from 14 Thomas Street in the direction of the residence of Mr Birch and at 9.09pm the deceased is seen to return to 14 Thomas Street from the west. This would appear to be when that drug sale took place.
The indicated approximate time of death
Dr Gilbert, the pathologist, gave evidence, which I accept, that the indicated approximate time of death was at around midnight with a range of error of plus or minus 2.8 hours (roughly 9.15pm to 2.45am) for a 95% certainty of that result being correct, a bell curve statistical distribution with the greatest probabilities being at the middle area of the curve.
The unanswered telephone calls as from 1am
Mrs Wilma Ames, the deceased’s widow, gave evidence, which I accept, that she cooked an evening meal for the deceased after which he went out. When he had not returned by 1am, she telephoned him on some four occasions from 1am to 3am. He did not answer any of those calls. The prosecution rely on this evidence to suggest that he was dead by the time of the first call at 1am. This would be consistent with the medical evidence as to time of death but I take into account Mr Boucaut’s submission that he may have not heard the calls or have elected not to answer them.
The behaviour of the sensor lights at 14 Thomas Street
The topic of the operation of the sensor lights at 14 Thomas Street is somewhat more contentious than the above matters and is of high importance.
I find that there were two sensor lights at 14 Thomas Street, one operating from the rear shed (the rear sensor light) and the other from the front shed (the front sensor light). These lights were located so as to be activated by persons walking through the front gate, past the first shed and towards the large rear shed (or, of course, in the opposite direction) and were properly working on 24 and 25 November 2009.
I find that the sensor light system was working on 24 and 25 November 2009 up to (and after) the discovery of the deceased’s body. I note that the rear and front sensor lights in fact came on and went off as the deceased left the premises at 9pm (to sell the methyl-amphetamine to Birch) and again on his return to 14 Thomas Street at 9.09pm. The sensor lights did not operate in his absence during that period. The sensor lights later came on when the deceased went to the front gates to allow the accused to enter at 9.56pm. They continued to come on and go off at various times while the accused was on the premises.
I find that as at 11.04pm, both sensor lights were off and remained off for a full hour until 12.04am when the rear sensor light came on, with the front sensor light coming on at 12.13am when the accused was in the course of leaving the premises. He left by the front gate and drove off. After his departure, neither of the sensor lights came on again. (I might add here that it cannot be sensibly suggested that someone disabled the sensor lights at the time that the accused left the premises thus rendering meaningless their later failure to go on. The accused could not have done so since he is observed to trip them on as he makes his way to the front gate and then leave. There was no reason why the deceased would have disarmed the sensor lights and every reason why he would not have done so. Finally, there is evidence that the sensor lights continued to work subsequent to 25 November 2009.)
The prosecution suggest that the behaviour of the sensor lights is important in a number of ways and that, even if one aspect of this evidence would not necessarily be determinative, the cumulative effect of all aspects of the sensor light evidence is powerful. The prosecution primarily suggest that the fact that the sensor lights did not ever come on after the accused left means that the deceased was dead when the accused left for a number of reasons.
I have found above that the accused was security conscious. The accused himself stated to the police that the deceased always locked the front gate, that it was locked on his arrival and that when the deceased unlocked it, the deceased again locked it behind them as they entered the premises.
Of course, the accused may submit that a friend or acquaintance might have got under the deceased’s guard and killed him. However, if that postulated friend or acquaintance is said to be someone other than the accused, the behaviour of the sensor lights stands in the way of such a theory. The only way that such a person would arrive would be by the front gate (in just the way that the accused came), either by arriving at a prearranged time outside the locked gate or, more likely, calling by mobile telephone from the gate. But on either scenario, the deceased has to go to the gate to let him, or her, in and the two of them would then have had to make their way from the gate to the shed (where the deceased’s body was later found). This would inevitably entail the tripping of the sensor lights. But such tripping simply does not occur at all. This is a very strong bar to a theory that the deceased may have been killed by a person he knew (other than the accused).
This still leaves, of course, the hypothesis of the random thief, perhaps a drug addict who has heard of the deceased’s reputation. But again, there are real problems with such theories. Such a person would have to be familiar with the property, succeed in getting onto the property without tripping either light, entering the shed of a security conscious man with firearms nearby, killing the deceased with a firearm he happens to have, and then leaving the property once again without tripping either light, all of this in the dark. Theories of using a ladder to access the gap above the blue door and then descending on to the floor are all very well but such access was unlikely to occur undetected and without the deceased having the chance of resorting to one of his weapons to defend himself.
Further, one can hardly divorce from consideration the intransigent fact that such person fails to take the $600 in the shirt pocket of the deceased (which would have been found on the most cursory inspection of the body) or any of the various firearms available.
There is a further cumulative consideration which I consider important. I have noted above that the accused asserted very firmly in his police interview that, on arrival, he was met at the gate by the deceased who unlocked the gates, admitted the accused and then locked the gates behind them. He then states in the interview that the deceased also later let him out in the following passage:[3]
[3] Exhibit P50: Record of interview with Daniel Troy Ames p 27-29.
A:We basically walked down the driveway and was sorta talking um about Nana and that, he was having a bit of a whinge about Dean and that.
Q:Yep.
A:And um we were just again whatever rubbish or tailers or fucking machinery was out the front sorta thing, we were just leaning up against that for a while, probably another maybe another five or ten minutes and um then I said alright I’m going and he opened the gates up, let me out.
Q:Did he have to unlock em?
A:Yep.
Q:Do, do you know what he used key wise?
A:How do you mean?
Q:Uh where, sorry, where he got, did he have his keys in his possession, are they on loop on his belt or in a pocket or something like that?
A:I think his always, I think his always got his keys on him.
Q:Yep that’s so to the best of your memory, he actually.
A:Whether he, I don’t know where he got em from, like whether took em out of his pocket or what I don’t know.
Q:We’re just trying to work out whether there’s some missing or not.
A:Oh right.
Q:So that’s alright yep, so unlocked the gates and you?
A:Oh we shake hands, we always do, said oh see ya later, if you need anything just let me know.
Q:Yep, yep.
A:And um that was that.
Q:Yep um.
A:He ah, I, he would a locked the gate behind him as well.
Q:Yep.
A:I heard it.
Q:Yep so you heard…?
A:Yep.
Q:What?
A:Like the gate, gate shut.
Q:Yep.
A:And lock.
Q:Heard gates lock?
A:Yep.
Q:Yep and what did you do then?
A:Uh I just come home.
Q:Yep got in your car?
A:Yep.
However, when viewing the Cross Cranes CCTV footage corresponding to the time of the accused’s departure, one sees, prior to the accused approaching his car, the rear sensor light comes on and then the front sensor light comes on a little later as some one walks north from the shed through the property to the gate. At 12.13:53am the rear sensor light goes off before the accused walks toward his car. It does not come on again. The front sensor light remains on as the accused approaches his car and then goes off by 12.14:30am. It is important to repeat once again that these are the last times that either of the sensor lights ever come on in the CCTV footage.
The accused stated to the police that the deceased shut the gate and that he heard the deceased lock it. However, the rear sensor light is off at the time that the accused exits the gate and the front sensor light goes off shortly thereafter. The part of the accused’s story that the deceased shut and locked the gate cannot be true because for the deceased to shut and lock the gate after the accused exited requires the deceased to walk from the gate back to the rear shed (where he is later found). This travel would have certainly resulted in the rear sensor light (that had gone off at 12.13:53am) turning on and almost certainly would also have turned on the front sensor light after it went off at 12.14:30am. However, neither sensor light came back on. The fact that the sensor lights do not come on convincingly demonstrates that the deceased did not accompany the accused to the gate on the accused’s exit. The prosecution say that the reason for the sensor lights not coming on is obvious – the deceased was already dead at that time.
Mr Boucaut referred to the prosecution submission that the sensor lights do not come on after the accused leaves the premises at 14 Thomas Street at 12.14am and submitted in effect that the evidence is not strong enough to rule out the possibility that a third party could have entered the property in such a way as to avoid tripping either of the sensor lights. He referred to inadequacy of police testing and to the fact that physical features of the property had changed between 24 November 2009 and the later date of testing.
Mr Boucaut also later submitted that there are a number of possible entry points including the blue side door (which he submitted may have been left unlocked and been locked by a killer on departure) or the gap in the iron above the blue door as discussed above.
As previously stated, while I am prepared to accept that entry by these routes was not impossible, it is highly unlikely. It would have taken someone having great familiarity with both the layout of the property and the workings of the sensor lights, and also a good deal of agility in the dark, to achieve entry and avoid tripping either a sensor light or alerting the deceased by noise or by using a light source.
Further, it will be appreciated that such submissions do not address certain important aspects of the sensor light evidence as discussed above.
The movements of the accused from 7.20pm on 24 November until 3am on 25 November 2009
I find that the accused had CCTV recording equipment installed at his house at 30 Malta Drive, Parafield Gardens, which was some distance to the north of Thomas Street, Cavan. The recordings were seized by police on 5 December 2009. Both the recorded footage and 29 still photographs taken from that footage were tendered in evidence. I make the following findings as to the contents of the 29 still photographs and the CCTV footage.
The accused at 30 Malta Drive from 7.20pm until 9.38pm 24 November 2009
The accused as at the time of the first still photograph is seen to be wearing what I will refer to as “outfit 1”, being a camouflage top, knee length pants and sandals. These items are depicted in the still photographs P55, numbers 1 to 8.
The accused drives from his home at Malta Drive to 14 Thomas Street at 9.38pm 24 November 2009
The accused’s CCTV shows him leaving his house at Malta Drive at 9.38pm – 9.40pm. Prior to leaving, the accused changes into what I will refer to as “outfit 2”, being a black long sleeve tee shirt, full length pants and moccasins. These items are depicted in P55, still photograph numbers 9 to 17. It is this “outfit 2” that he wears at 14 Thomas Street and, on the prosecution case, when he kills the deceased.
I find that the Navara was recorded travelling south on Port Wakefield Road at the Safe-T-Cam near Globe Derby Park at 9.42pm and that the accused was recorded on CCTV shortly after that when buying fuel at the BP service station on the eastern side of Port Wakefield Road, about 500-600 metres before the junction of Port Wakefield Road and Thomas Street also on the eastern side. He is seen on the BP service station CCTV shortly before his arrival at 14 Thomas Street at 9.52pm with the still image (exhibit P61) showing the accused wearing “outfit 2”.
The accused’s vehicle is parked at 14 Thomas Street from 9.52pm 24 November continuously until 12.14am on 25 November 2009
It was an agreed fact and an admission by the accused that the accused’s Nissan Navara twin cab utility Reg No S064 ACM (hereafter “the Navara”) was parked immediately outside 14 Thomas Street from 9.52pm on 24 November 2009 continuously until 12.14am on 25 November 2009 and I find this to be proven beyond reasonable doubt.
The accused departs 14 Thomas Street at 12.14am and arrives at his home at 30 Malta Drive at 12.26am on 25 November 2009
The accused agrees that he left 14 Thomas Street at 12.14am on 25 November 2009. The CCTV equipment at his house at 30 Malta Drive showed him returning to his house at 12.26am on 25 November 2009. The accused therefore took about 12 minutes to drive home. It is to be noted that he had earlier taken 12 minutes to travel from home to 14 Thomas Street (as measured by the same equipment), but that period of 12 minutes had included his stop for fuel at the BP station. The accused stated in his police interview that the drive from Malta Drive direct to 14 Thomas Street would usually take about 5 minutes.
The accused was specific and adamant in his police interview that he went home from 14 Thomas Street by the same route he had come.
However, I find that it is established that he did not return home by the same route he had earlier taken to 14 Thomas Street since his vehicle was not recorded travelling north on Port Wakefield Road at the Safe-T-Cam near Globe Derby Park (which continuously monitored all north and south bound vehicles). The accuracy and reliability of this equipment was in no way questioned or challenged by Mr Boucaut in circumstances where it was quite clear that the prosecution sought thereby to prove a clear lie by the accused in his interview.
I will return to the question of why he may have taken a different route below.
I find that when the accused returned to his house at 30 Malta Drive at 12.26am on 25 November 2009, the CCTV equipment showed him still wearing “outfit 2”. However, prior to again leaving twenty minutes later, he changes clothing for a third time to “outfit 3”. This comprises a quite different top (with “No 96” on the back), full length track pants and sandals rather than moccasins.
The accused drives away from his home at Malta Drive at 12.57am on 25 November 2009
The CCTV footage shows that the accused, having arrived home at 12.26am, again left home twenty minutes later at 12.57am.
The accused arrives back at his home at Malta Drive at 2.56am
The CCTV footage shows the accused arriving back at his home at Malta Drive at 2.56am. He is still wearing “outfit 3”, the “No 96” shirt and sandals.
A partial chronology of relevant events
Some of the above matters which I have found to be proven may be summarised as follows:
Time[4] Exh Event A’s Clothing Shoes 24 Nov “OUTFIT 1” 7.20pm P55 ph 1; CCTV P52 Accused (A) drives into garage at 30 Malta Drive Camouflage top Not shown 7.21pm P55 ph 2; CCTV P52 A & Lagerwey (L) at 30 Malta Camouflage top; knee length pants Not shown 7.53pm P55 ph 3; CCTV P53 A & L at 30 Malta Drive Camouflage top; knee length pants Not shown 8.34pm P55 ph 4; CCTV P53 A & L at 30 Malta Drive Camouflage top; knee length pants Not shown 8.48pm – 8.49pm P55 phs 5, 6; CCTV P51 L at 30 Malta Drive Not shown Not shown 9.18pm P55 ph 7; CCTV P51 A & L - L leaving 30 Malta Drive Camouflage top; knee length pants Sandals 9.19pm P55 ph 8; CCTV P51 A at 30 Malta Drive Camouflage top; knee length pants Sandals “OUTFIT 2” 9.35pm P55 ph 9; CCTV P51 A at 30 Malta Drive – has changed from “outfit 1” to “outfit 2” Long sleeve Tshirt; long pants moccasins 9.36pm P55 ph 10; CCTV P51 A at 30 Malta Drive Long sleeve Tshirt; long pants moccasins 9.37pm P55 ph 11; CCTV P51 A carrying bag (to car) Long sleeve Tshirt; long pants moccasins 9.38pm P55 ph 12; CCTV P51 A returning into house without bag Long sleeve Tshirt; long pants moccasins 9.38pm P55 ph 13; CCTV P51 A leaving 30 Malta Drive in Navara Long sleeve Tshirt; long pants moccasins 9.39pm -9.40pm P55 ph 14 & 15; CCTV P51 A leaving 30 Malta Drive in Navara Long sleeve Tshirt; long pants moccasins 9.42pm P67 Navara travels south through Safe-T-Cam at Globe Derby Park, Port Wakefield Road 9.52pm P61; CCTV P31B A photographed at BP service station. See also the video footage exhibit P31B Black, long sleeve Tshirt; long pants moccasins 9.52pm P33[5] [9] Agreed Fact: Navara parks in front of 14 Thomas Street (remains to 12.14am) Accused later states to police that the deceased unlocked the front gate, admitted the accused and locked the gate behind them as they entered the premises 25 Nov 12 midnight Indicated approximate time of death around midnight with a range of error of plus or minus 2.8 hours for 95% certainty 12.14 am P33[6] [10] Agreed Fact: Navara leaves position in front of 14 Thomas Street Accused later states to police that the deceased accompanied him to the front gate, unlocked the gate, let the accused out and re-locked the gate before returning into the premises. 12:18:30 am No sensor light comes on again at 14 Thomas Street after 12:18:30 am 12.26am P55 ph 16; CCTV P51 A returning to 30 Malta Drive in Navara Long sleeve Tshirt; long pants moccasins 12.28am P55 ph 17; CCTV P51 A returning to 30 Malta Drive in Navara Long sleeve T shirt; long pants moccasins “OUTFIT 3” 12.48am P55 ph 18; CCTV P51 A changes from long sleeve T shirt to “No 96 shirt”, removes moccasins
[The CCTV footage shows the accused not wearing shoes at the time of photograph 18. He then walks towards the Navara, disappears from view and then reappears into view wearing sandals just before the time of photo 19.]No 96 shirt; long pants 12.49am P55 ph 19; CCTV P51 A carrying baseball cap and wearing sandals No 96 shirt; long pants sandals 12.49am P55 ph 20; CCTV P51 A picks up moccasins from ground and then (on the CCTV footage) takes them inside No 96 shirt; long pants sandals 12.56am P55 ph 21; CCTV P52 A leaving 30 Malta Drive via the garage No 96 shirt Not shown 12.56am - 12.57am P55 phs 22, 23; CCTV P52, 51 A leaving 30 Malta Drive in Navara Not shown Not shown 1am Mrs Ames (widow of the deceased) starts to telephone the deceased 2.56am P55 ph 24; CCTV P51 A returning to 30 Malta Drive Not shown 2.56am P55 phs 25, 26; CCTV P51 A returning to 30 Malta Drive No 96 shirt; long pants sandals 3.01am-3.04am P55 phs 27-29; CCTV P52, P53 A at 30 Malta Drive No 96 shirt; long pants sandals About 8.48am Body of deceased discovered by Mr Paul Martino 5 Dec 09 Interview of accused [4] As noted above, times have been adjusted to South Australian standard time.
[5] Exhibit P33 - Agreed Facts 1.
[6] Exhibit P33 - Agreed Facts 1.
The clothing worn by the accused on 24-25 November 2009
During the course of the trial, I had noticed that exhibit P55 (the still photographs taken from the CCTV recordings from the accused’s home) shows that over the period from 7.20pm on 24 November to 3.04am on 25 November, the accused was seen to be wearing three different sets of clothing. (Although the CCTV video material from which the still photographs were taken had been tendered, it had not been played, and was not subsequently played in Court.)
When the prosecutor had finished his address but had not referred to this topic, I raised the matter with him at T605 so as to permit both him and Mr Boucaut to consider the matter. Mr Boucaut made some preliminary submissions and Court was then adjourned for the luncheon break.
On resumption, Mr Boucaut made further submissions including that the first change of clothing by the accused was due to him working out in the home gymnasium. Since I understood the prosecutor to accept that comment, I will accept that the change from “outfit 1” to “outfit 2” (which is the clothing that the accused wore on his visit to 14 Thomas Street) may have been made because the accused had been working out in the home gymnasium.
I also accept that at the time (9.37pm – photo 11) when the accused is seen to carry a bag out to the Navara, that bag was not then being used for the immediate purpose of carrying clothing since he was then wearing “outfit 2” and in fact later returned home from 14 Thomas Street wearing that same “outfit 2”.
However, these matters do not alter the fact that the accused, after returning from 14 Thomas Street, changed out of “outfit 2” and changed into “outfit 3” before again driving off in the Navara.
I also note that the accused later asserted to the police during their search on 5 December 2009 that, as to the pants that he had been wearing during his visit to 14 Thomas Street, he stated that “black trackies, mate that’s all I fucking wear”[7] and produced multiple pairs of pants matching that general description. As to the shirt that he had been wearing, he stated that it was a long sleeved tee shirt but that he was unable to find it.
[7] Exhibit 50: Record of interview with Daniel Troy Ames p 56.
I consider that the evidence is at least consistent with a wish by the accused to distance himself from possible evidence of the murder (including evidential material deposited on his clothes or transference from his clothes to the murder scene) and an intention to at some time destroy any such evidence by disposing of the clothing that he had worn during the murder.
The accused’s interview with police on 5 December 2009
At 9.50am on 5 December 2009 Detectives from the Major Crime Squad attended the home of the accused. They were told that it was not convenient for the accused to speak to them then but the accused offered to telephone them to make an appointment for later that day. He later did so and police again attended at about 12.25pm that same day. At that time the accused was not a suspect. He began giving a statement which was taken down in handwriting. He told police that he was at the deceased’s premises on the evening of 24 November 2009. The police then indicated that this may cause the accused to be considered a suspect and accordingly they set up video recording equipment, cautioned him and conducted a detailed interview.
I have viewed the police interview of the accused. I find that the accused told the police deliberate lies on several topics to which I now refer.
The duration of the accused’s visit to 14 Thomas Street, and the time that he left the accused, on 24-25 November 2009
The accused said that his visit with the deceased at 14 Thomas Street occurred on 24-25 November, its duration was “maybe 20 to 25 minutes”[8] and that he was home after leaving 14 Thomas Street by “say quarter to ten I spose”.[9]
[8] Exhibit P50: Record of interview with Daniel Troy Ames p 26.
[9] Exhibit P50: Record of interview with Daniel Troy Ames p 32.
I find beyond reasonable doubt that these statements were plain and deliberate lies. They are proven to be false by the accused’s own unqualified admission, eventually made during the course of the trial, that the visit lasted for at least 2¼ hours and that he left 14 Thomas Street at 12.14am on 25 November. I reject any suggestion that this falsity could have been due to mistake or faulty memory having regard to:
·the large difference between the inconsistent statements;
·the shortness of the ten day period between the occurrence of the event and the recounting of it to police;
·the fact that, on his own case, he would have had the circumstances of his visit on the previous night drawn to his attention when he learnt of the murder on 25 November and, if he were innocent, would then have realised that it must have occurred not long after he had left at 12.14am;
·the degree of specific detail he gave about the visit; and
·his demeanour while giving his answers to the police.
The accused returns home by a different route
As stated above, the accused was specific and adamant in his interview that he went home from 14 Thomas Street by the same route that he had come. However, I have found above that it is established that he did not return home by the same route he had earlier taken to 14 Thomas Street since his vehicle was not recorded travelling north on Port Wakefield Road at the Safe-T-Cam near Globe Derby Park.
Again, I find that the accused told this lie deliberately. My reasons for doing so are very similar to those I have enunciated in relation to his lies as to the very closely related topic of the duration and time of his visit to 14 Thomas Street.
Why the accused took a different route, and whether he stopped somewhere en route and for what purpose, cannot be positively established. Although there is no positive evidence, this fact is at least consistent with the proposition that the accused may have disposed of the murder weapon during the drive home from 14 Thomas Street. In this context I note that police found no firearm or ammunition at 30 Malta Drive during their search on 5 December 2009. I consider this to be a neutral fact. If the accused had killed the deceased, he would have appreciated the necessity of divesting himself of such evidence and he had every opportunity to discard the firearm, either en route back home from 14 Thomas Street or at some later time prior to the search.
The circumstances under which the accused left the company of the deceased
The third clearly proved lie by the accused in the police interview relates to the circumstances under which he left the company of the deceased on 24 or 25 November 2009 and in particular his statement to police that the deceased accompanied him to the gate on his departure. I have considered this matter in the context of the topic of the sensor lights and will not repeat that discussion here.
I find that the statement is shown to be false by the fact that the sensor lights did not again come on as explained above. Again, I find that the statement was a deliberate lie. My reasons for doing so are very similar to those I have enunciated in relation to his lies as to the very closely related topic of the duration and time of his visit to 14 Thomas Street.
The effect of the proven lies on the credibility of the accused
The accused is entitled to have what he said during the interview, including that which is of an exculpatory nature, treated as evidence in the case.[10] However, while I take into account his various statements as to the circumstances surrounding his visit, I find his credibility to be so damaged by the proven lies that I consider that I can place little weight on his exculpatory statements.
[10] R v Weetra (2010) 108 SASR 232 and the cases referred to therein.
I indicate that I would adopt the same view of the impact on the credibility of the accused if the only lie in the interview were that which related to the time and duration of his visit to 14 Thomas Street, this being the statement that the accused himself admits is incorrect and which I have found to be a deliberate lie.
I emphasise that my finding as to the accused’s lack of credibility in his statement to police in no way alters or affects the onus of proof; a rejection of the accused’s statements in no way leads to the result that it is for him to prove anything or that a proposition opposite to that stated by the accused can be strengthened, let alone established, by that rejection. A rejection of the version of an accused person in no way derogates from the obligation of the prosecution to prove the case against him beyond reasonable doubt on the evidence before me.
Do the lies reveal a consciousness of guilt?
Mr Boucaut submits that I should not find that the lies evince a consciousness of guilt. He poses the question: why would the accused have mentioned to police that he went to 14 Thomas Street on 24 November at all if he had killed the deceased on that occasion? Mr Boucaut in effect submits that the accused’s initial decision to mention the matter is positively evocative of innocence and that the later lies are redolent of panic. Obviously, this is an important question and is one that I had previously raised with counsel for the prosecution during his address.
Prosecution counsel’s response to this question was that the reason that the accused initially raised the matter may have been because he believed that he, or his vehicle, may have been noticed in the vicinity. There is force in this submission. After all, the vehicle was fairly large and distinctive and was parked outside 14 Thomas Street for about 2¼ hours at an unusual time of the night. There is clear evidence that the deceased was well known in the area. There were persons passing up and down Thomas Street, particularly having regard to comings and goings at Cross Cranes across the street and the presence of the Cross Keys hotel on the corner, to which the witness Mr Ridley, an employee of the Cross Cranes, resorted.
Prosecution counsel also suggested that the accused would have been well aware that he had likely been photographed at the BP service station only a short distance away and this too may have a bearing on the matter.
It may be suggested that such arguments are “speculative” and in one sense they are. But I do not use such arguments as found facts against the accused. Rather, the significance of these matters is their bearing upon the rhetorical question put by Mr Boucaut: why would the accused mention the matter at all if he were not innocent? If that question were incapable of being answered, that might of itself present a serious impediment to a finding of guilt. However, I consider it is capable of being answered along the lines as suggested by the prosecutor and that it demonstrates that the initial volunteering of the information by the accused is not inconsistent with the prosecution case.
I simply add that I do not attach significance to the fact that no witness was called to say that he or she had seen the vehicle and gave a description or the registration number to police after hearing of the murder. First, I am here considering the prosecution theory that the accused, if guilty, may himself have been worried about what may have happened such as to lead to him to make a pre-emptive disclosure as to his presence, as distinct from what did happen. Secondly, if a potential witness did make such a report, such evidence has now become otiose because the accused subsequently admitted his presence which is all that such a person could testify to; the police may well have taken the view that such evidence was thus rendered unnecessary.
However, an important question remains as to the precise use to which I can put what were clearly deliberate lies by the accused. The prosecution submit that I should go further than using them only as a matter going to the credibility of his statements in his interview and that I should find that they manifest a consciousness of guilt by the accused, in effect an implied admission of guilt.
I expressed doubt at trial as to whether the circumstances are here sufficient to warrant that use. I have carefully considered the matter and have come to the view that my first reaction was correct. I am not prepared to accede to the prosecution submission. I consider that the circumstances fall short of establishing a consciousness of guilt, or an implied admission of guilt, as being manifested by the telling of the lies.
The gunshot residue test evidence
I received evidence, subject to objection, that on 9 December 2009 Sergeant Hackett took samples from various positions in the Navara utility for the purpose of gunshot residue testing. A sample taken from the steering wheel was labelled “S03” and a sample taken from the centre console lid was labelled “S06”. All samples were submitted to Forensic Science Centre for testing.
I received further evidence, subject to objection, in the form of a report dated 24 March 2010 from Ms Hayley Brown, a Forensic Scientist, that she examined the Remington .380 Auto cartridge case and each of the samples taken by Sergeant Hackett. Her report stated in part:
The adhesive tape stub taken from the spent cartridge case contained characteristic and indicative GSR particles.
The following particles were found on the adhesive tape stubs (SO3 and SO6) taken from the Navara:
One (1) lead/antimony and 1 lead/barium particle were found on 2 of the adhesive tape stubs taken from the Navara. These particles are considered indicative GSR particles.
No particles of interest were found on any of the other adhesive tape stubs.
CONCLUSION
The presence of 2 indicative GSR particles on 2 of the adhesive tape stubs taken from the Navara provides no significant evidence of an association between the Navara and the discharging or storage of a firearm, not withstanding the possibility that those 2 indicative particles may have originated from a firearms source, however other sources are possible.
Information provided indicates that the vehicle was not seized until a couple of weeks after the incident. Overtime, particles can be redistributed and removed from surfaces, therefore, if the vehicle had been used, cleaned or driven with windows down and/or air-conditioner on, few GSR particles would be expected to persist that length of time.
(Emphasis added)
The prosecution accepted that this witness could not give any further oral evidence to advance the prosecution position. Her written evidence can do no more than suggest that the two samples taken from the steering wheel and the centre console lid were consistent (in the strict sense of “not inconsistent”) with originating from a firearms source. She states that “other” sources are possible and, for all I know, there may be many such “other” sources. She states that there is “no significant evidence” of an association between the Navara and the discharging or storage of a firearm.
If the case had been a trial by jury, I would have excluded the evidence on the basis that its prejudicial effect greatly outweighed any probative value it may have. In the circumstances of a trial by Judge alone I consider that it is appropriate that I admit the evidence but I find it to have no weight. I disregard it.
The defence case and matters said to favour the defence case
The accused has put the prosecution to proof. It is required to prove each of the elements of the charge of murder as I have outlined them above. Further, the case has been conducted throughout on the basis that the assertion by the accused in his interview that he was not present when the deceased was killed and did not have anything to do with that event is the central defence case and the onus remains on the prosecution to prove that the accused did murder the deceased.
I take into account the whole of the final address by Mr Boucaut and the submissions made by him throughout the trial. I will not be referring explicitly to all of them. I have already referred to some of the matters urged by Mr Boucaut in the context of considering the prosecution evidence and submissions and I will not repeat those matters.
In these reasons, I refer to some of the arguments in favour of the defence case but at the same time refer to opposing considerations which militate against their acceptance. I fully appreciate that this approach might well be inappropriate for a summing up to a jury where the task is to present the defence as a cohesive whole for the purpose of providing a start to consideration by the jury. However, the purpose of these remarks is different. It is not to provide a start to my consideration but rather to provide reasons as to how I have come to the decision that the accused is guilty of the charge, including why I have come to that conclusion despite matters that might superficially appear to militate against it. I will proceed roughly in the order of the defence address from T605.
Lack of established motive to kill
I have referred to this matter above in the context of my general examination of the evidence and there is no need to repeat the matter. I note that Mr Boucaut asserted that it would be unusual for a person to kill his uncle and I take that into account for what it is worth. He also states that there is nothing alarming or unfriendly in the text messages on 24 November. He noted that one is signed off “cheers”. I afford such matters little weight. It is obvious that, speaking generally, an evil intent may be accompanied by a friendly appearance.
The circles in which the accused moved
Mr Boucaut referred to Mr Bouhandan as an appalling witness, shady and as having sent the deceased an aggressive text message. These comments may be fair, but Mr Boucaut agreed that he does not suggest that Mr Bouhandan killed the deceased[11] and merely referred to him of an example of the shady characters with whom the deceased might be associating.
[11] Mr Bouhandan stated that he had an alibi and if it had been suggested to him that he had killed the deceased, the prosecution would no doubt have called that evidence.
Mr Boucaut then particularly referred to the fact that there is no doubt that the deceased was involved in trading in methyl-amphetamine and also was in possession of a number of cannabis plants. It was then submitted that his involvement in drug trading might have led to a person associated with such activities wishing to do him some mischief; Mr Boucaut pointed to the fact that the deceased was security conscious and that the knife and machete in the deceased’s utility indicated that he was expecting trouble.
These points are reasonable, of course, but the prosecution submitted that one must also have regard to the fact that the subsequent finding of the substantial amount of methyl-amphetamine at the home of the accused tends to suggest that he also was to some extent involved with illicit drugs and the fact that a small amount of MDMA was found in both packages at the accused’s home and also in the samples taken from 14 Thomas Street tends to indicate, as Mr Boucaut appeared to concede, a common origin of the methyl-amphetamine. It also thereby provides a link between the accused and the deceased in the context of methyl-amphetamine trading.
Of course, I make it clear that I in no way suggest or reason that the possession of methyl-amphetamine by the accused in any way indicates that he is a person likely to kill anyone or that he has a propensity to commit violence. Neither do I consider that the possession of methyl-amphetamine should impinge upon the credibility of the accused’s exculpatory statements to the police.
A robbery?
Mr Boucaut suggested that the deceased may have been killed in the course of a robbery not involving the accused. I consider such a theory to be fanciful for all of the reasons I have already given and including that any thief would have taken the $600 in the deceased’s shirt pocket. Further, since such a postulated thief also had at least some familiarity with firearms (to be deduced from his possession and use of one on this occasion), one would also expect a number of the firearms on the premises to have been taken.
Mr Ridley’s evidence that the lights in both sheds were on
Mr Boucaut referred to Mr Ridley’s evidence that the interior lights in both sheds were on, here of course referring not to sensor lights but to standard interior lighting. He also referred to the prosecutor’s comment which was that Mr Ridley was probably wrong about the front shed interior light being on.
Mr Boucaut is, of course, right in saying that the evidence is there despite any opinion of the prosecutor. However, I am not sure where Mr Boucaut says the evidence leads. It seems to me that, whether Mr Ridley is right or not, the important point is that he also said that the lights were on from a very early time, and were in fact on when he got back from the hotel somewhere between 9pm and 10pm. In those circumstances, the lights could have been put on by the deceased himself before the accused arrived, or during his visit but prior to his death, or indeed, the accused himself could have put them on himself. As I see it, the lights staying on in those circumstances cannot indicate an act of a third party occurring after the accused had left at 12.14am. This concludes discussion of Senior Counsel’s address.
Is there any rational hypothesis consistent with the accused’s innocence?
I have carefully considered all of the above matters and all of the evidence and submissions by both counsel. I have also considered whether there are other matters that can be put in favour of the accused. I have come to the conclusion that, taken as a whole, the prosecution case is cohesive and overwhelming. Any hypothesis of innocence of the accused requires such an unlikely combination of events and circumstances that it is to be dismissed as fanciful with the result that there is no rational hypothesis or reasonable hypothesis consistent with the innocence of the accused.
Conclusion and verdict
I conclude and find that the charge is proven beyond reasonable doubt.
I find the accused guilty of murder as charged in the Information.
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